OCTOBER 2015 PERSECUTION OF THE ROHINGYA MUSLIMS: IS GENOCIDE OCCURRING IN MYANMAR’S RAKHINE STATE? A LEGAL ANALYSIS PREPARED FOR FORTIFY RIGHTS ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC, YALE LAW SCHOOL OCTOBER 2015 PERSECUTION OF THE ROHINGYA MUSLIMS: IS GENOCIDE OCCURRING IN MYANMAR’S RAKHINE STATE? A LEGAL ANALYSIS Prepared by the ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC, YALE LAW SCHOOL for FORTIFY RIGHTS ACKNOWLEDGMENTS This paper was written by Alina Lindblom, Elizabeth Marsh, Tasnim Motala, and Katherine Munyan of the Allard K. Lowenstein International Human Rights Clinic at Yale Law School. The team was supervised and the paper edited by Professor James Silk, director of the Lowenstein Clinic, and Soo-Ryun Kwon, formerly the Robert M. Cover - Allard K. Lowenstein Fellow in International Human Rights at Yale Law School. Former clinic member Veronica Jordan-Davis contributed to the initial research for the paper. The team would like to thank the students in the Fall 2015 Lowenstein Clinic for helping to check the paper’s citations. CONTENTS I. SUMMARY ................................................................................................ 1 II. METHODOLOGY ......................................................................................4 III. HISTORY OF HUMAN RIGHTS ABUSES AGAINST ROHINGYA IN MYANMAR ...........................................................................................5 A. ROHINGYA UNDER MILITARY RULE: FROM MYANMAR’S INDEPENDENCE THR OUGH 2011 ..............................................................5 1. Denial of Citizenship .............................................................................6 2. Forced Displacement ............................................................................8 3. Forced Labor ......................................................................................10 4. Religious Persecution ..........................................................................11 5. Marriage Restrictions and Population Control .......................................11 B. THEIN SEIN’S ADMINISTRATION ............................................................. 13 1. Arbitrary Detention ............................................................................. 14 2. Forced Labor ...................................................................................... 14 3. Sexual Violence .................................................................................. 15 4. Restrictions on Freedom of Movement ................................................. 16 5. Marriage Restrictions and Population Control ...................................... 17 C. 2012 UNREST IN RAKHINE STATE ........................................................... 18 D. THE CONTINUED PLIGHT OF THE ROHINGYA: 2013 – PRESENT ..............29 1. Conditions in Internally Displaced Person (IDP) Camps .........................29 2. Discriminatory Laws and Government Practices Against Rohingya ........32 IV. APPLICATION OF THE LAW OF GENOCIDE TO THE CASE OF THE ROHINGYA ....................................................................37 A. INTRODUCTION TO THE LAW OF GENOCIDE ............................................37 CONTENTS B. THE “GROUP” ELEMENT OF THE CRIME OF GENOCIDE ...........................38 1. National, Ethnical, Racial, or Religious Group ........................................38 2. Rohingya as an Enumerated Group ..................................................... 42 3. Conclusion on the “Group” Element .................................................... 44 C. THE “ACTS” ELEMENT OF THE CRIME OF GENOCIDE ...............................45 1. Killing Members of the Group ..............................................................45 2. Causing Serious Bodily or Mental Harm to Members of the Group ....... 46 3. Deliberately Inflicting on the Group Conditions of Life Calculated to Bring About its Physical Destruction in Whole or in Part .......................47 4. Imposing Measures Intended to Prevent Births Within the Group .... 50 5. Conclusion on the “Acts” Element ..................................................... 51 D. THE “INTENT” ELEMENT OF THE CRIME OF GENOCIDE ...........................52 1. Anti-Rohingya and Anti-Muslim Rhetoric ...........................................54 2. Evidence Indicating Intent to Inflict Conditions of Life on Rohingya Calculated to Bring About Their Physical Destruction ..........................54 3. Mass Scale of Acts Targeting Rohingya ................................................56 4. Conclusion on the “Intent” Element ....................................................58 V. STATE RESPONSIBILITY FOR THE CRIME OF GENOCIDE .............. 60 A. STATE RESPONSIBILITY FOR ACTS OF STATE ORGANS ........................... 61 B. STATE RESPONSIBILITY FOR ACTS OF NON-STATE ACTORS ....................62 C. STATE DUTY TO PREVENT GENOCIDE .....................................................62 VI. CONCLUSION AND RECOMMENDATION .......................................... 64 LIST OF ABBREVIATIONS ICJ International Court of Justice ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia IDP Internally Displaced Persons ILC International Law Commission ILO International Labor Organization MSF Médecins Sans Frontières (Doctors Without Borders) NaSaKa Nay-Sat Kut-kwey ye (Myanmar border security force) NLD National League for Democracy RNDP Rakhine Nationalities Development Party SLORC State Law and Order Restoration Council U.N. United Nations UNHCR U.N. High Commissioner for Refugees I. SUMMARY This legal analysis considers whether the ongoing attacks on and persecution of the Rohingya Muslim population in Myanmar constitute genocide, as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The paper begins with a detailed, historical account of the human rights situation of Rohingya since Myanmar’s independence. It then uses the Genocide Convention’s definition of gen- ocide to analyze the treatment of Rohingya. This analysis does not conclude definitively whether genocide is occurring. Such a conclusion would require a full and independent inves- tigation by an appropriately authorized institution with investigatory powers and provisions for the accused to respond to allegations. However, assuming that the information to which the Lowenstein Clinic has had access is credible and comprehensive and accurately reflects the Rohingyas’ situation, the paper finds strong evidence that genocide is being committed against Rohingya. The Genocide Convention,1 which was adopted by the General Assembly of the United Nations in 1948 and entered into force in 1951, declares that genocide is a crime under international law. It imposes affirmative legal obligations on states to prevent genocide from occurring and to punish perpetrators of genocide. The proscription of the crime of genocide, as defined by the Convention, has become an unequivocal part of customary international law. 2 Further- more, it is a jus cogens norm,3 a principle binding on all states even if they have not consented to the obligation by ratifying the Convention. 1 Convention on the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, 78 U.N.T.S. 277 (1951) [Genocide Convention]. 2 Prosecutor v. Goran Jelisic, Case No. ICTY-IT-95-10-T, Judgment, para. 60 (Dec. 14, 1999) (“[T]he Conven- tion has become one of the most widely accepted international instruments relating to human rights. There can be absolutely no doubt that its provisions fall under customary international law as, moreover, noted by the International Court of Justice as early as 1951. The Court went even further and placed the crime on the level of jus cogens because of its extreme gravity.”). Customary international law is commonly defined as the law of the international community that “results from a general and consistent practice of states followed by them from a sense of legal obligation.” Restatement (Third) of Foreign Relations Law § 1987) (2)102). The governing statute for the International Court of Justice (ICJ) includes customary international law, or “international custom, as evidence of a general practice of law,” as one of the types of law that the Court is to apply. Statute for the International Court of Justice, June 33 ,1945 ,26 U.N.T.S. 933, art. 1)38)(b). The ICJ has further explained that for a rule of customary international law to arise, “[n]ot only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence that this practice is rendered obligatory by the existence of a rule of law requiring it.” North Sea Continental Shelf (Ger. v. Den., Ger. v. Neth.), 1969 I.C.J. 3, para. 44 (Feb. 20). 3 The Vienna Convention on the Law of Treaties defines a jus cogens norm as one that is “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.” Vienna Convention on the Law of Treaties, adopted May 23, 1969, 1155 U.N.T.S. 331, art. 53 [Vienna Convention]. INTERNATIONAL HUMAN RIGHTS CLINIC • YALE LAW SCHOOL 1 Article II of the Genocide Convention defines genocide as: [A]ny of the following acts com- mitted with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the